[00:00:03] Speaker 02:
Good morning.

[00:00:04] Speaker 02:
Good morning.

[00:00:04] Speaker 02:
May it please the court, Caitlin Howard, appearing on behalf of Appellant Stanford Wall.

[00:00:10] Speaker 02:
I'd like to reserve two minutes, and I will watch the clock.

[00:00:14] Speaker 02:
I plan to focus my arguments, unless the court has questions, on the second and third issues raised in my briefs, the Sixth Amendment issue and the prosecutorial misconduct issue.

[00:00:26] Speaker 01:
The district court, when it allowed... Let me ask you a sort of preliminary question.

[00:00:31] Speaker 01:
Certainly.

[00:00:33] Speaker 01:
Given the district court's ruling that the defense later in the trial could raise the blind mule issue, why didn't the defense call a blind mule expert rather than sort of thinking it might be that the government's expert could testify about blind mules?

[00:00:55] Speaker 02:
I appreciate the court's question, and that was actually something I wanted to address as well.

[00:00:59] Speaker 02:
I know that the government raised the issue in its brief, in its responsive brief, but I would point the court to the Eliminate hearing when the district court and defense counsel had an extensive conversation about the admission of blind mule testimony.

[00:01:12] Speaker 02:
And the district court, and I'm going to quote here from the E.R.

[00:01:16] Speaker 01:
I remember what he said.

[00:01:17] Speaker 01:
I know about blind mules, you know, very rare and all that.

[00:01:22] Speaker 01:
But the district court did say, I'll let you raise this issue later.

[00:01:27] Speaker 02:
And Your Honor, nothing that happened between the in-limiting hearing and the trial, and the conversation that was had at the in-limiting hearing was extensive.

[00:01:36] Speaker 02:
Nothing that happened between that and the trial and the testimony that came out changed the court's ruling.

[00:01:41] Speaker 02:
And in the in-limiting hearing, the court said, can you point me to a Ninth Circuit case where they have reversed a district court for not admitting evidence from the defense of a blind mule expert?

[00:01:54] Speaker 02:
And there is no such case.

[00:01:56] Speaker 02:
And the court said, well, until the Ninth Circuit tells me otherwise, I'm going to exclude this under Rule 403.

[00:02:03] Speaker 02:
That was a clear ruling that the court was not going to allow even a single question about blind mules to be introduced at trial.

[00:02:12] Speaker 02:
It was not related to specifically the cross-examination.

[00:02:18] Speaker 02:
The court made it clear.

[00:02:19] Speaker 02:
Was there a Ninth Circuit case that said the defense could bring in or introduced blind mule testimony?

[00:02:25] Speaker 01:
Weren't there effective in the defense

[00:02:29] Speaker 01:
examination, weren't there effectively blind mule questions?

[00:02:35] Speaker 01:
That is to say, without using the phrase blind mules, isn't it true that people come across without knowing and so on?

[00:02:45] Speaker 02:
No, Your Honor.

[00:02:46] Speaker 02:
I don't believe that that testimony came in through any witness.

[00:02:49] Speaker 02:
It was precluded.

[00:02:51] Speaker 03:
Well, no.

[00:02:53] Speaker 03:
No one used the word blind mule, but there was testimony about the value of the drugs and there was testimony about whether, I think there was an argument made, you wouldn't let someone have that amount of drugs if they didn't have some trustworthy status.

[00:03:16] Speaker 03:
your client's defense was, I didn't know it was there.

[00:03:20] Speaker 03:
But no one ever used the blind mule.

[00:03:23] Speaker 03:
But I guess also, too, in terms of framing your argument, when the original objection came about, was it posed as a confrontation clause objection there?

[00:03:40] Speaker 03:
I don't think it was.

[00:03:42] Speaker 02:
Your honor, it was asked whether or not the court would permit cross-examination of the drug value expert about the existence of blind mules, and the court declined.

[00:03:52] Speaker 02:
And then defense counsel said a second time, and I was actually defense counsel, then I said a second time.

[00:03:59] Speaker 03:
Then I said a second time.

[00:04:00] Speaker 03:
You're not going to talk about yourself in the third person.

[00:04:02] Speaker 02:
It's OK.

[00:04:03] Speaker 02:
It feels a little odd.

[00:04:04] Speaker 02:
So I did ask the court again, would the court permit even a single question about the existence of blind mules?

[00:04:13] Speaker 02:
And that was when the court asked for a Ninth Circuit case and said that he would not allow any testimony about blind mules from the defense.

[00:04:21] Speaker 01:
But it was after that that the judge said, but I'll let you raise it again.

[00:04:27] Speaker 01:
Am I correct?

[00:04:28] Speaker 02:
In a separate hearing, the judge said that that was his ruling, but that if something changed, it could be re-raised.

[00:04:34] Speaker 02:
But nothing changed.

[00:04:36] Speaker 02:
The evidence, and because the conversation was so extensive at the eliminate hearing, the government basically explained exactly how it planned to argue.

[00:04:43] Speaker 02:
The defense raised the objection.

[00:04:45] Speaker 02:
In the Southern District, these cases are tried in a very similar way.

[00:04:51] Speaker 04:
Experts testify in a very similar way and so nothing changed between that hearing and the trial or the trial testimony And so I do think that the issue is preserved council may ask for some clarification I just want to make sure I understand your position Is it your position that because blind mules exist evidence of drug value is inherently not probative and almost always inadmissible and importation cases under rule 403

[00:05:16] Speaker 02:
Your Honor, in this case analysis, and the 403 analysis is a case-by-case analysis, in this case analysis, the existence of blind mules combined with the other circumstances of the case created a situation where the probative value of that testimony was so little.

[00:05:34] Speaker 02:
And I'm not going to say there's no probative value to the value testimony.

[00:05:37] Speaker 02:
But it certainly, the known existence of blind mules certainly changes the calculus

[00:05:42] Speaker 02:
of how probative the value testimony is.

[00:05:45] Speaker 02:
Because if the inherent argument is that the drugs are so valuable that nobody would entrust them to an unknowing courier, but then we start to see about 10 years ago and then more and more frequently, oh, but sometimes they actually do entrust them to unknowing couriers in this scenario, in that scenario, and suddenly the cases and the scenarios are growing and increasing, it becomes less and less probative as time goes on and we see all the different types of schemes drug trafficking organizations are using.

[00:06:11] Speaker 01:
You'd agree with that.

[00:06:12] Speaker 01:
The government put in a lot of other evidence that circles around that blind mule theory, the fix-a-flat, for example, and no tools, the time that was spent where the car was out of sight at the car wash and when they're inside eating at a restaurant.

[00:06:36] Speaker 01:
And you can tell they're circling that

[00:06:40] Speaker 01:
that issue by saying, no, no, couldn't have happened.

[00:06:44] Speaker 02:
And I agree with the court, but I do think that circling around the issue with the jury, but not giving the jury that foundational piece of information, which is, blind mules do exist, but here are all the reasons, and the government could have made this argument, blind mules do exist, but here are all the reasons that this person is not a blind mule.

[00:07:02] Speaker 02:
But that's not the argument that they made.

[00:07:04] Speaker 02:
Instead, they referred to Mr. Wall's theory of defense as pure speculation and repeatedly argued that the values inherently

[00:07:13] Speaker 02:
And while they didn't use the word nobody would entrust, for the jury not to have the foundational information that blind mules do exist, the way that the government argued it certainly suggested that this valuable commodity would not be entrusted to an unknowing courier.

[00:07:29] Speaker 02:
And that argument is misleading to the jury because we actually do know that at times drug trafficking organizations do use unknowing couriers to smuggle their drugs.

[00:07:41] Speaker 03:
So if just establishing that there is a blind mule out there, let's say there's only one out in the whole world, but just establishing that would have changed the whole calculus of the trial?

[00:07:54] Speaker 02:
And Your Honor, I think that's a difficult question to answer because there have been more than one blind mule.

[00:08:00] Speaker 02:
It's not that kind of unicorn rare at this point with government investigations and discovery that's provided.

[00:08:07] Speaker 02:
And that conversation was also had.

[00:08:10] Speaker 02:
We can't put a number on the number of blind mules.

[00:08:12] Speaker 01:
Can you put a number on the value of the drugs?

[00:08:17] Speaker 02:
I think the drug value expert did put a number.

[00:08:21] Speaker 01:
No, I'm saying.

[00:08:21] Speaker 01:
the value of the drugs that are brought in by blind mules and that type that is bulk versus less bulk and so on.

[00:08:29] Speaker 02:
I think that the government would concede based on the memo that they produce that it's bulk.

[00:08:35] Speaker 02:
The value is significant in the blind mule cases as well.

[00:08:38] Speaker 02:
The quantity of drugs here, I believe it was around 20 kilograms, is not so significantly, so much more significant than drugs in those cases either.

[00:08:49] Speaker 03:
Well, OK, I know you wouldn't concede this necessarily, but just I'm going hypothetically.

[00:08:55] Speaker 03:
There's a case called Urina that holds that there is no confrontation problem when a district court permits cross as to one, issues covered indirect, and two, matters of bias and motivation, which that was allowed.

[00:09:12] Speaker 03:
Both of those were allowed.

[00:09:14] Speaker 03:
So in cross, indirect, was there any mention of the blind mule?

[00:09:20] Speaker 02:
Your honor, there wasn't.

[00:09:21] Speaker 02:
But I would argue that, and I use this court's three-factor test from Larson.

[00:09:27] Speaker 02:
I would argue under that first factor, the question is, is the requested cross-examination or is the evidence relevant?

[00:09:33] Speaker 02:
And I would argue that the only relevance of the drug value expert's testimony

[00:09:39] Speaker 02:
is knowledge.

[00:09:41] Speaker 02:
That is the inference, that is the argument that the prosecutor is going to make.

[00:09:46] Speaker 02:
And so because the drug value expert is a law enforcement expert testifying about the value of the drugs and that the only relevance of that is knowledge, then it would be relevant and it would be within the scope of direct examination to ask questions that also go to whether or not the drug value proves knowledge.

[00:10:07] Speaker 03:
Well, OK.

[00:10:08] Speaker 03:
So hypothetically, because we don't conference before we come to court.

[00:10:14] Speaker 03:
So I don't know.

[00:10:15] Speaker 03:
But hypothetically, let's assume that we agree with you, that there's a confrontation clause error.

[00:10:24] Speaker 03:
And my understanding would be that that would be subject to the Chapman harmless error analysis.

[00:10:31] Speaker 03:
Am I right so far?

[00:10:33] Speaker 03:
Yes, Your Honor.

[00:10:34] Speaker 03:
OK.

[00:10:36] Speaker 03:
So why?

[00:10:37] Speaker 03:
Couldn't, why isn't it slim and none and slim left town that there would have been, that we would have a different result here?

[00:10:50] Speaker 02:
Your Honor, I think that the district court addresses this during jury instructions.

[00:10:55] Speaker 02:
And again, in the post trial motions, the district court describes this case and says, this is not a slam dunk case during jury instructions.

[00:11:06] Speaker 02:
He says that it's a case built entirely on circumstantial evidence and that the government came into the case knowing that it was going to be difficult and challenging to prove.

[00:11:15] Speaker 02:
This is at the jury instruction conference after the evidence had come in.

[00:11:19] Speaker 03:
Okay, but after we hear all the evidence, I can look at the evidence.

[00:11:23] Speaker 03:
He had, your client had inconsistent border crossing history.

[00:11:28] Speaker 03:
He did not travel on a predictable schedule.

[00:11:30] Speaker 03:
He told no one he was traveling.

[00:11:33] Speaker 03:
He used different vehicles with no predictable pattern.

[00:11:36] Speaker 03:
No tracking device was found with the meth.

[00:11:40] Speaker 03:
So he was away from the car for a limited period of time.

[00:11:47] Speaker 03:
The only times where the car was out of his sight was at the car wash and the pizza restaurant.

[00:11:52] Speaker 03:
His timeline contains gaps and is somewhat

[00:11:56] Speaker 03:
bizarre, one could say.

[00:11:57] Speaker 03:
He arrived in Mexico between 3 and 3.30.

[00:12:00] Speaker 03:
The purpose of his trip was to drop off, quote, a succulent, some food, and a box of rags at the homes of his wife's family members.

[00:12:10] Speaker 03:
Out of the roughly six hours he spent in Mexico, excluding the three hours he spent waiting at the border, Walsp only spent

[00:12:18] Speaker 03:
Moments dropping off the assorted goods about five to 10 minutes while then drove to the car wash arriving about 430 and left his car while he got ice cream.

[00:12:28] Speaker 03:
Then he went to a restaurant and pizza for one hour after we went to Eddie's and got a torta while got in line to cross the border at around nine o'clock PM and waited for three hours before reaching the port of entry at midnight.

[00:12:42] Speaker 03:
His plan was to drive home, which would have taken three more hours.

[00:12:46] Speaker 03:
So that is circumstantial evidence, but it's a lot of it.

[00:12:50] Speaker 03:
After there's been a verdict, we have to give the inferences from that.

[00:12:54] Speaker 03:
How do you overcome the harmless error analysis?

[00:12:57] Speaker 02:
Your Honor, I would point out to the court that Mr. Wall presented evidence by witnesses, three separate witnesses, who corroborated significant

[00:13:08] Speaker 02:
sorry, who corroborated significant parts of that post-arrest story, that he had gone down to Mexico to visit family, that he had dropped off rags, a succulent, food to family members.

[00:13:19] Speaker 03:
I mean, you're having a hard time keeping a straight face over dropped off rags and a succulent.

[00:13:23] Speaker 02:
You're on.

[00:13:24] Speaker 02:
I was just trying to remember that.

[00:13:26] Speaker 02:
But the testimony supported it.

[00:13:28] Speaker 02:
That the witnesses said that he had come down, that he had stopped at their homes, that it was not unusual for the family that lived in the United States to go to Mexico and drop off items that they had collected from their church.

[00:13:40] Speaker 02:
That testimony is in the record, and it's supported not by one witness, but by three different witnesses.

[00:13:45] Speaker 02:
His son, who saw him leave that morning and watched him fill the car with things, his

[00:13:51] Speaker 02:
And his wife's family member, the first homie stopped at, the second homie stopped at, and then the second homie stopped at, that woman ran the taco shop and confirmed that he had stopped there before he went back across the border.

[00:14:04] Speaker 02:
And so while I understand that the government presented the post-arrest statement as kind of this implausible story,

[00:14:11] Speaker 02:
there certainly was evidence in the record that corroborated the statement.

[00:14:15] Speaker 02:
And in addition to that, the case agent did some investigation and went through Google Maps and actually found the car wash.

[00:14:24] Speaker 02:
And then next to the car wash found an ice cream shop.

[00:14:27] Speaker 02:
And so also corroborating kind of an odd part of that post arrest story according to the government.

[00:14:34] Speaker 02:
And so I think that when you look at that and then you look at also the drugs were found in the spare tire and also the spare tire, the government's car expert testified that the spare tire did not match the other four tires and that it wasn't in fact a tire that would have been put on that car at the time it left the factory, the spare tire.

[00:14:53] Speaker 02:
It wasn't the factory tire.

[00:14:55] Speaker 01:
Doesn't that cut against you?

[00:14:57] Speaker 02:
No, Your Honor, I don't think so.

[00:14:59] Speaker 02:
If the argument is that this person didn't know that the drugs were in the car and that somebody just put the spare tire on the car, say, while he was at the car wash, I think that- And that he wasn't traveling with a real spare tire.

[00:15:13] Speaker 02:
He wasn't traveling with the spare tire that the car came with or that matched the other tires on his car.

[00:15:18] Speaker 02:
Most people driving a car, the tire would match one of those two things.

[00:15:21] Speaker 03:
OK, so you're in overtime right now.

[00:15:23] Speaker 03:
Let me ask if- I do have one more.

[00:15:26] Speaker 03:
OK, go ahead.

[00:15:26] Speaker 03:
And I'll give you two minutes for rebuttal.

[00:15:28] Speaker 01:
Thank you.

[00:15:31] Speaker 01:
You have an assumption, unstated, that that expert on valuation is knowledgeable about blind mules.

[00:15:40] Speaker 01:
Was there anything in the record that shows that?

[00:15:45] Speaker 02:
Your Honor, I think that this, yes, I think when the expert was qualified, she testified that she had 15 years of law enforcement experience, that she had primarily investigated cases of drug smuggling back across the border, that she had investigated drug trafficking organizations through wiretap, use of confidential informants.

[00:16:08] Speaker 02:
that she had herself been involved in 800 investigations at the port of entry.

[00:16:13] Speaker 02:
And that 500 of those, she was the primary case agent.

[00:16:17] Speaker 02:
So I think given all of that information, she could have answered the question of whether or not she knew that drug trafficking organizations had used black mules.

[00:16:25] Speaker 02:
I think that that is within the realm of her expertise.

[00:16:28] Speaker 02:
And certainly it was the court, the government, there was no dispute that that is a fact at the border.

[00:16:36] Speaker 02:
So I think it would have been within the realm of her expertise.

[00:16:38] Speaker 03:
What if she hadn't talked to the expert?

[00:16:42] Speaker 03:
What if she had said, well, yeah, I'm aware of their use, but not aware of anyone using them in this?

[00:16:48] Speaker 03:
this amount, where does that leave you?

[00:16:50] Speaker 03:
Don't ever ask a question you don't know the answer to.

[00:16:54] Speaker 02:
Your Honor, and she could have answered that way, but I think that then it would have given the defense the opportunity in closing argument to at least say to the jury, look, the government doesn't think that this person is a blind mule, but we know that blind mules exist, and we know that this is in a spare tire, and we know we stopped at the car wash.

[00:17:12] Speaker 02:
And at least that foundational fact is there to combat the government's argument that this theory of defense was, in their words,

[00:17:18] Speaker 02:
pure speculation.

[00:17:19] Speaker 03:
Okay, thank you.

[00:17:20] Speaker 03:
Thank you, your honor.

[00:17:21] Speaker 03:
All right, I'll give you two minutes on rebuttal.

[00:17:23] Speaker 02:
Thank you.

[00:17:27] Speaker 00:
May it please the court, Daniel Zip, on behalf of the United States.

[00:17:29] Speaker 00:
Good morning.

[00:17:30] Speaker 00:
Good morning.

[00:17:31] Speaker 00:
The district court was within its discretion in limiting the cross-examination in this case for a couple reasons.

[00:17:37] Speaker 00:
First and foremost, it was beyond the scope of the direct examination to get into the issue of blind mules.

[00:17:44] Speaker 00:
All the agent Johnson testified to was how much meth is worth per pound, how much was in the car, and what the total value was.

[00:17:52] Speaker 00:
She never touched on blind mules in direct, and under this court's case in Garola, that alone is grounds for the court to limit the cross-examination.

[00:18:02] Speaker 03:
So if, you know, I understand what, the point that really if you want that testimony in, you can't count on using someone else's witness to get it in as far as that goes, and the word would never came up.

[00:18:22] Speaker 03:
But I was a trial judge, and I think you have two other trial judges that were here.

[00:18:27] Speaker 03:
I probably would have let it come in, and I don't think it would have made any difference one way or the other.

[00:18:33] Speaker 03:
But so now we're here.

[00:18:35] Speaker 03:
So tell me, was it a confrontation clause violation?

[00:18:40] Speaker 03:
And how did the court look at it throughout?

[00:18:44] Speaker 03:
And I think Judge Wallach, your friend on the other side said that the judge

[00:18:52] Speaker 03:
at the district level made it clear that no way, no how was there going to be any evidence of blind mules, and that's why she didn't call her own expert.

[00:19:01] Speaker 03:
Judge Wallach had a different reading of the record.

[00:19:04] Speaker 03:
Were you there too?

[00:19:06] Speaker 00:
I was not, Your Honor.

[00:19:08] Speaker 00:
Okay.

[00:19:09] Speaker 03:
So how do you look at the record?

[00:19:11] Speaker 00:
To answer the second half of that, I don't think the record supports the idea that the court ruled that the defense could not bring their own expert.

[00:19:19] Speaker 00:
If you look at that, it's at ER20 when that discussion occurred.

[00:19:22] Speaker 00:
It immediately followed the defense's request to ask one question about blind mules of this witness.

[00:19:28] Speaker 00:
And that's when the court said, are you aware of any Ninth Circuit cases that have reversed the court for not allowing blind mule testimony?

[00:19:34] Speaker 00:
In the context, it was referring to the cross examination.

[00:19:37] Speaker 00:
The court never at any point said, I'm going to prohibit you from

[00:19:41] Speaker 00:
calling your own witness and in fact this court in Castellanos Garcia held that even if a court is skeptical about whether something would be admissible the defense still has to try and the defense in this case never provided notice of any expert witness and at the motion for a new trial hearings admitted that she didn't believe that she needed to call her own witness so I don't think the record supports the idea that the court had ruled out blind mules coming in altogether

[00:20:09] Speaker 00:
all it ruled out was you can't use the government's witness who testified only to something separate to sort of bring this in to help your case.

[00:20:18] Speaker 00:
As to the confrontation clause question, Your Honor, I think the Supreme Court has made clear that the confrontation clause doesn't give the defense to cross examination that is effective in whatever way and to whatever extent the defense might wish.

[00:20:33] Speaker 00:
Ultimately, it's the district court that has the discretion to decide

[00:20:37] Speaker 00:
how to limit cross-examination.

[00:20:39] Speaker 00:
And even if Your Honor may have allowed the question, if you were sitting there, ultimately it's a question of abuse of discretion for this district court.

[00:20:45] Speaker 00:
Was it illogical or implausible for the district court to limit cross-examination to the issues that were raised on direct?

[00:20:53] Speaker 00:
And we don't believe that it was.

[00:20:54] Speaker 01:
In the context of this, the government says in its brief that the

[00:21:02] Speaker 01:
allowing crossing the exam would have created a mini trial on the side.

[00:21:08] Speaker 01:
What do you mean by a mini trial?

[00:21:11] Speaker 01:
It sounds like a hearing to me, rather than a mini trial.

[00:21:16] Speaker 00:
Well, what the prosecutor said when this first came up was, if the defense wants to ask those questions about the existence of blind mules in other cases, then he should be permitted to ask questions about what are the characteristics of those.

[00:21:30] Speaker 00:
So again, that's another basis for the court to exclude this on cross-examination.

[00:21:35] Speaker 00:
Now we're talking about character.

[00:21:36] Speaker 01:
But how is that a mini trial?

[00:21:38] Speaker 01:
I mean, I just don't see.

[00:21:41] Speaker 01:
I know there are such things as mini trials, particularly in civil cases where preliminary issues are determined.

[00:21:50] Speaker 01:
But this doesn't strike me as anything like that.

[00:21:52] Speaker 01:
It's just five minutes of herring off into the field.

[00:21:58] Speaker 03:
Well, I guess I'm going to.

[00:22:00] Speaker 03:
not defend the district judge, but I could envision if the question was, what about in case of Davis versus USA v Davis?

[00:22:12] Speaker 03:
And there you had someone that was transporting X amount of drugs and there was, so then the person acknowledges, yes, that case exists.

[00:22:24] Speaker 03:
but then you have to come back and say, okay, but these were the factors in that case why the jury may have found a blind mule or why that testimony was allowed.

[00:22:35] Speaker 03:
So if you get into individual cases where blind mules existed in cases with this amount of drugs, then you have to go look all those cases up, then you have to factually distinguish all of them if you open up the whole can.

[00:22:51] Speaker 03:
The one question

[00:22:53] Speaker 03:
doesn't open up a whole can of Pandora's box.

[00:22:58] Speaker 00:
Sure, Your Honor.

[00:22:58] Speaker 00:
And whether you characterize it as a mini trial or just an extensive discussion about other cases, I think what the court was doing was saying, you know, exercising its discretion to keep something that's confusing and delaying out of what is very straightforward testimony about the value of methamphetamine.

[00:23:15] Speaker 04:
Counsel, let me, I apologize for interrupting, but I wanted to stick with the jury confusion or mini trial.

[00:23:22] Speaker 04:
Here's my concern, I'll be frank with you, is do the concerns about jury confusion or mini trials outweigh Wal's interest in asking about blind mules on cross?

[00:23:33] Speaker 04:
You're cutting them at the knees.

[00:23:35] Speaker 00:
No, Your Honor.

[00:23:37] Speaker 00:
I think if we're in the confrontation clause world, there's a difference between restricting a defendant from impeaching the witness herself and restricting the defense from putting in their own helpful evidence through the government's witness.

[00:23:54] Speaker 00:
It's our position that this doesn't even implicate the confrontation clause in this context because there's nothing, the defense refers to it as impeaching the testimony, but it's not, you don't impeach testimony, you impeach the witness.

[00:24:06] Speaker 00:
And the district court did not restrict the defense in any way from impeaching her as to whether she was right about the value of drugs, whether her sort of calculations were correct or whether she was relying on reliable information.

[00:24:18] Speaker 01:
Would you agree the court left the door open?

[00:24:21] Speaker 01:
for a blind mule expert?

[00:24:23] Speaker 01:
For an expert, blind mule expert from the defense.

[00:24:26] Speaker 00:
Yes.

[00:24:27] Speaker 00:
I don't think there's anything in the records that suggests that the court was excluding the defense.

[00:24:31] Speaker 03:
Well, the court kind of did say a little bit like what I just did, hey, that working is kind of slim and none and slim left town.

[00:24:41] Speaker 03:
It doesn't come out very much, and it doesn't really work, and we know that da-da-da-da-da-da.

[00:24:47] Speaker 03:
Sort of cast a little bit of a negative attitude on that.

[00:24:51] Speaker 03:
but did say the words, you can bring your own person in.

[00:24:56] Speaker 00:
I don't know that he said it as explicitly as that, but on balance, I don't... Well, I'm just trying to... I think that's the way your friend on the other side sort of took it.

[00:25:06] Speaker 00:
Again, as this court in Castellanos Garcia, which was even more skeptical from the district court, it doesn't mean that you have to still attempt at some point to put in the expert.

[00:25:17] Speaker 00:
And there's a reason why the defense wouldn't put in the expert in this case, because the expert would testify, yes, there's some blind mules somewhere, but they don't share any of the characteristics with this defendant who had an unpredictable crossing pattern.

[00:25:30] Speaker 00:
who, you know, the access to the tire could only be gotten from inside the car, you know, which sort of goes to your point, Your Honor, that ultimately at the end of the day, this would all be harmless anyway, because even if the defense had been allowed to ask, do blind mules exist, then the prosecutor would have asked, do they share any of the characteristics with this case, and we'd be left in essentially the same position that we are here.

[00:26:01] Speaker 03:
So if I understand your argument, it's not a confrontation issue.

[00:26:06] Speaker 03:
But even if it were, the harmless error would save the conviction.

[00:26:16] Speaker 00:
I think it's not a confrontation clause issue.

[00:26:20] Speaker 00:
Even if it were, under the three-factor test, the information about blind mules was not relevant to impeaching the witness.

[00:26:27] Speaker 00:
The court had a legitimate interest outweighing the introduction of that testimony.

[00:26:33] Speaker 01:
I have another question for you that I thought of earlier.

[00:26:37] Speaker 01:
And that is, doesn't the value of the drugs implicate something other than just blind mules?

[00:26:46] Speaker 01:
Telling the jury that 44 pounds of meth is worth this much must have some other implication, statutory or otherwise.

[00:27:00] Speaker 00:
This court has recognized repeatedly that that value is circumstantial evidence of the defendant's knowledge of the drugs, that you're more likely to know that there's $100,000 on your backseat than you are $1,000.

[00:27:12] Speaker 00:
And that was sort of the limit of the circumstantial evidence.

[00:27:16] Speaker 03:
And the issue in the trial was knowledge, right?

[00:27:21] Speaker 03:
Undisputedly.

[00:27:22] Speaker 03:
I mean, not that the drugs were what the drugs were.

[00:27:27] Speaker 03:
The amount isn't really disputed.

[00:27:30] Speaker 03:
It's just, did the defendant, Mr. Wall, know?

[00:27:39] Speaker 03:
And he put in testimony that

[00:27:40] Speaker 03:
Did he testify?

[00:27:42] Speaker 00:
He did not know.

[00:27:43] Speaker 03:
All right.

[00:27:44] Speaker 03:
So his lack of knowledge came in how?

[00:27:47] Speaker 00:
Through all of the circumstantial evidence that you outlined in the harmless analysis.

[00:27:52] Speaker 03:
But not actually his saying, I didn't know.

[00:27:56] Speaker 00:
Correct.

[00:27:56] Speaker 00:
It was his implausible story, the sort of amount and value of the drugs, the way that they were stored.

[00:28:02] Speaker 03:
No, but did Mr. Wall testify at trial?

[00:28:04] Speaker 00:
No, he did not.

[00:28:06] Speaker 00:
But again, to your point, I think this court has held in Sanchez-Lopez that the price of drugs is probative to knowledge of those drugs.

[00:28:15] Speaker 00:
And that's why we put the value expert in.

[00:28:16] Speaker 00:
And it was just sort of one brick in our overall circumstantial case as to how he must have known.

[00:28:22] Speaker 00:
And the fact that blind mules exist somewhere doesn't make that testimony unfairly prejudicial.

[00:28:33] Speaker 00:
Happy to answer any other questions the court might have.

[00:28:35] Speaker 03:
I don't think we have any additional questions.

[00:28:37] Speaker 03:
You're free to use your time, but you don't have to.

[00:28:51] Speaker 02:
I just want to address two points quickly.

[00:28:54] Speaker 02:
First, the relevance being of the drug value expert's testimony knowledge, I do think that a question about the existence of blind mules is impeachment of that value and the purpose of the value, which is to prove knowledge, the relevance of it.

[00:29:13] Speaker 02:
It's impeachment by contradiction.

[00:29:15] Speaker 02:
The government's saying, oh, we're going to offer this witness.

[00:29:17] Speaker 02:
They're going to tell you how valuable these drugs are, and then you're going to infer from that that Mr. Wall must have known about the drugs.

[00:29:23] Speaker 03:
You have notice of their expert, and you could have noticed them an expert, but you didn't, right?

[00:29:28] Speaker 02:
I did not notice an expert, Your Honor, but I do think that this was squarely within the scope of the direct examination.

[00:29:33] Speaker 02:
The only relevance of that testimony is knowledge.

[00:29:37] Speaker 02:
And so a question about the fact that actually that value doesn't necessarily prove knowledge because drug trafficking organizations do use blind mules.

[00:29:47] Speaker 03:
Did the witness say that someone that has that amount of jugs must have knowledge?

[00:29:53] Speaker 02:
No, but that was the only relevance of her testimony, was to draw that inference in closing argument.

[00:29:59] Speaker 02:
And so cross-examination of that witness, the only real significant cross-examination of that witness, nobody cares if the drugs are worth $45,000 or $85,000 or $50,000, the only real way for the jury to weigh

[00:30:13] Speaker 02:
how heavily to consider the probative value of that evidence is for the jury to know that, in fact, drug trafficking organizations have used blind mules.

[00:30:22] Speaker 02:
So the value of the drugs is actually not that probative.

[00:30:25] Speaker 02:
It's directly relevant to that particular witness's testimony.

[00:30:29] Speaker 01:
Look at you say that.

[00:30:30] Speaker 01:
I mean, surely a juror in applying common sense and knowledge of the world is going to know the difference between, say, 20 kilos

[00:30:42] Speaker 01:
a quarter of an ounce that was found on the floor that somebody dropped through the window, or $5 worth of drugs versus $50,000 worth of drugs, leaving aside your other issues.

[00:30:59] Speaker 01:
They can just look at that and apply real world knowledge.

[00:31:04] Speaker 02:
Yes, Your Honor.

[00:31:05] Speaker 02:
But I think that the fact that the government brought a witness to testify about it is what creates the need to impeach by contradiction that witness.

[00:31:14] Speaker 02:
And just one other point, Your Honor.

[00:31:17] Speaker 01:
But impeaching by contradiction would be saying to the witness, oh, come on.

[00:31:23] Speaker 01:
Isn't it true that this stuff sells, that 44 kilos sell on the street for, or 20 kilos sell on the street for $1.98?

[00:31:32] Speaker 01:
and you said $50,000, that would be contradiction.

[00:31:36] Speaker 02:
Well, I think it's also a contradiction to inquire of the witness whether or not the drug trafficking organization, whether or not the value of the drugs actually might not mean knowledge, because drug trafficking organizations hide those drugs in people's cars who don't know.

[00:31:52] Speaker 03:
All right.

[00:31:52] Speaker 03:
You've gone over, over.

[00:31:54] Speaker 03:
Uber over.

[00:31:56] Speaker 03:
Thank you both for your argument in this matter.

[00:31:59] Speaker 03:
It will be submitted at this time.